Sentence reduced for negligent homicide convict

March 15, 2014

A man convicted of negligent homicide a year ago had his sentence reduced by about nine and a half months at a hearing Thursday at the Ward County Courthouse in Minot.

Gaylord Gene Evans, 71, was sentenced March 28 to four years in prison with two years suspended in addition to a $5,000 fine, $525 in fees and $785 in restitution for the negligent homicide death of Denise Hoffert of Minot, who was 50 at the time of her death. Negligent homicide is a Class C felony.

Evans' new sentence calls for only one year and 77 days of that four-year sentence. Judge Douglas Mattson gave Evans credit for the 75 days he served in the Ward County Jail, so Evans will be serving a total of one year and two days in the North Dakota State Penitentiary in Bismarck.

The charge stems from a rather freak accident on Ward County Road 10A, about one mile east of U.S. Highway 83 just outside of Minot on July 12, 2011.

According to an affidavit filed with the criminal complaint, Evans was driving a pickup truck with an attached trailer eastbound on the highway. When a vehicle driven by Hoffert approached westbound the trailer on Evans' truck became detached from its hitch, entered the westbound lane and collided with Hoffert's vehicle head-on, causing her death.

Police inspected Evans' vehicle and found that no ball was attached to the pickup's hitch. Evans told police he was in the habit of removing the hitch ball when no trailer is attached because it allegedly falls off in transit.

Evans' passenger in the vehicle, Phyllis Evans, backed up his story when speaking with police and had indicated that Gaylord Evans had removed the ball hitch just then while they were standing outside.

The affidavit went on to state that "fresh, visible gouge marks" were present under the tongue of the trailer, "indicating that the tongue of the trailer was set on the hitch without a ball securing the trailer." Investigation also indicated that it didn't appear that the safety chains were attached during transport because the hooks were rusty and didn't appear to have been under any stress.

The circumstances of the case itself had already been largely discussed in the late October and early November 2012 trial as well as in an appeal to the North Dakota Supreme Court that upheld the district court judgement. Instead, rather than challenging the idea of Evan's responsibility at all, his lawyer, Monte Rogneby of the Vogel Law Firm in Bismarck, submitted arguments for a lesser sentence.

"This is a hard case. I don't think that anybody who looks at the facts of this case is not left with a clear feeling that it was a tragedy that Ms. Hoffert died," Rogneby said. "It's no question that she did nothing to cause what happened. So the blame clearly falls on Mr. Evans. It was his truck, it was his trailer."

Then he briefly went through the history of the defense's position on the matter that ended up losing in both jury trial and upon appeal.

"The question for the court in the criminal matter wasn't whether Mr. Evans was at fault but rather was it a case of negligence or a case of criminal negligence. And I think that question was difficult based on the facts and was difficult based on the law," he said. "It's certainly not a case of someone voluntarily getting intoxicated and then driving or someone voluntarily speeding and running through a stop sign and causing an accident."

The history being stated Rogneby then went on to describe Evans as a 71-year-old man with deteriorating health conditions including high blood pressure, diabetes, heart conditions, anxiety and depression, among others. He also said that a civil settlement had been reached with Hoffert's family that, while not able to bring Hoffert back, should "mitigate this court exercising it's authority for leniancy."

"To sentence a 71-year-old in poor health, or the kind of health you'd expect from someone who's 71 years old, is a different type of burden than sentencing someone who is 40 years old who's in good health," he argued.

Rogneby then said that he wasn't trying to make Evans out to be a victim and not arguing that no punishment should be given but that he was seeking "proportionate" punishment.

There are four major reasons for criminal convictions and the punishments that follow, Rogneby said, and he believed that deterrence and punishment have already been achieved and that the likelihood of recidivism, or to commit the crime again, is very small. Also, with a criminal history composed of one seatbelt and one speeding violation in his life there was not a criminal history to rehabilitate.

In his response, prosecutor Jeremy Ensrud defended the initial judgement and brought up the idea that Evans "seems to dictate" where and when court processes take place through a series of appeals, stays and continuances. He also read a statement from the family.

"Each time he (Evans) requests something, whether it be a jury trial, an appeal, or reduction in sentence is hard on the family. We cannot have extra time with Denise or bring her back. Why should he have a reduction in sentence when the sentence is already imposed?" Ensrud said, reading from the statement. "He has completely altered our lives and this is ridiculous. We already feel his punishment is light and request that the judge deny his request."

He said that the whole process is confusing for the family and that they often ask "Is this it? Can we have closure?"

"And we have to tell them 'No, it's still going on.' There's not closure," Ensrud said. "I'm not alleging that those (appeals, etc.) are necessarily done for the purposes of dely or to try to circumvent justice. ... This has stopped the family from having closure."

Mattson said that nothing going on in the history of this case is outside the typical pattern of cases like this. In his closing statement, before making his judgement, he spoke on the difficulty of determining a case like this but that Evans has met the four parts of punishment spoken about by Rogneby.

"It doesn't matter what sentence I impose, it won't bring back the deceased. In terms of the family's suffering ... I'm sorry. When you lose someone close to you you're always going to miss them," Mattson said. "I can't look at a sentence as something that's not going to provide closure. I don't doubt, Mr. Ensrud, the comments that you made regarding how the family members feel. I think they are very heartfelt in that and it does make the job tougher."